The Legal Framework for Artificial Energy Islands in the Northern Seas

Belgiu m, Denmark and the Netherlands have announced their interest in constructing artificial ‘energy islands’ to enable the integration of large-scale offshore wind energy into the energy syste m. This raises several legal question s, such as how do these devel - opments fit in the balance of interests required by the United Nations Convention on the Law of the Se a, what European Union law is applicable to artificial islands and how Belgiu m, Denmark and the Netherlands approach the construction of artificial islands. This article provides a comprehensive overview of the applicable legal framework and shows the variety of approaches and strategic choices States may have when develop - ing energy island s.


Introduction
Several coastal States around the Northern Seas (North Sea and Baltic Sea) have confirmed their extensive ambitions to develop offshore wind energy.1In order to harvest the vast amount of wind energy, Belgium, Denmark and the Netherlands have recently announced their interest in constructing 'energy islands' in their exclusive economic zones (EEZ).Denmark is planning to use the natural island of Bornholm in the Baltic Sea and create an additional island in the North Sea,2 while the Netherlands is planning one or more 'energy hubs' which could take the form of an artificial island.3The Belgian grid operator 'Elia' , initiator of the Belgian artificial island, has even started the permit application process.4 The proposed island will be located in the Princess Elisabeth zone.5 Artificial energy islands could serve as hubs,6 collecting the energy from the surrounding wind farms and serving as a facility to bring the energy ashore, either in the form of high voltage direct current (HVDC) or in the form of hydrogen or another energy carrier.7Moreover, energy islands can be used for various 1 This was done in the Esbjerg Declaration, signed by Belgium, Denmark, Germany and the Netherlands.Together, the countries aim for 65 GW installed capacity by 2030 and 150 GW by 2050.The document is available at https://en.kefm.dk/Media/637884571703277400/The%20Esbjerg%20Declaration%20(002).pdf; all websites accessed 6 October 2023 unless otherwise mentioned.2 The Danish island in the North Sea will be located approximately 80 kilometres offshore.The materials and layout of the island, as well as the functional requirements, are not yet known.3 Both countries have formulated this ambition in their respective 'Climate Agreements' , see the comparative analysis below.4 Elia, Letter to the Minister of Justice and the North Sea, 'Modular Offshore Grid 2 -Aanvraag milieuvergunning en Natura 2000 toelating' (6 January 2023) available at https://odnature .naturalsciences.be/downloads/mumm/news_at_wp/post-2448/MOG2-ELI-EPNGQ-00242 _Aanvraag_Milieuvergunning_Natura%202000%20toelating.pdf(in Dutch).5 The island will be located approximately 45 kilometres offshore.Building materials and requirements are not yet public, but the island will have a nature-inclusive design.6 The term 'energy islands' is also used to refer to isolated energy systems on natural islands.
Such islands are not covered by the analysis in this article.See European Commission, 'Clean energy for EU islands initiative' (2022) available at https://energy.ec.europa.eu/topics/markets-and-consumers/clean-energy-eu-islands_en; accessed 3 October 2022.7 Whereas the onshore electricity grid used alternating current (AC) technology, this does not work for distances longer than roughly 100 kilometres.Therefore, to bring offshore generated electricity to shore, high voltage direct current (HVDC) technology is employed.A Taieb and M Shaaban, 'Cost analysis of electricity transmission from offshore wind farm by HVDC and hydrogen pipeline systems' (2019) IEEE PES GTD Grand Inter national Conference and Exposition Asia (GTD Asia) 632-636, at p. 632; S Krishna Swamy, N Saraswati, and P Warnaar (TNO), 'North Sea Wind Power Hub (NSWPH): Benefit study for (1+3) potential locations of an logistical and practical purposes related to the operation and maintenance of offshore wind farms and the associated infrastructure.8In its 'Offshore Renewable Energy Strategy' , the European Commission (EC) emphasises that energy islands can be used to support the offshore development of wind energy and hydrogen production.9Artificial islands can serve to collect the electricity generated from various offshore wind farms and transport it directly to several countries, or, alternatively, to convert it into hydrogen and transport it to shore via pipelines.This can help to prevent congestion of the electricity grid and provide energy-intensive industry with supplies of sustainable energy.Hence, the development of such islands in the Northern Seas can enable large-scale offshore wind energy developments and contribute to strengthening the integration of the offshore and onshore energy system.Recently adopted policy frameworks in Belgium, Denmark and the Netherlands promote the development of multifunctional islands and platforms where offshore wind energy can be bundled, making it possible to transport electricity to shore more efficiently, either via cable (electricity) or pipeline (gas).10Such transmission and conversion infrastructure would require a lot of space, which is why an artificial island may be more cost-effective than a combination of modular installations that together form a large platform.Despite the contribution energy islands could make to sustainable energy security, there are several potential issues arising from the development of artificial islands, such as conflicts with other uses of maritime space (notably navigation and fisheries), negative environmental impacts,11 and various technical offshore hub-island' (TNO report, North Sea Energy 3 Report, 2019) available at https:// northseawindpowerhub.eu/files/media/document/NSWPH-Benefit-study-for-potential -locations-of-an-offshore-hub-island-1.pdf.The International Journal of Marine and Coastal Law 38 (2023) 1-34 barriers to their construction.Moreover, innovative offshore projects, such as artificial energy islands, face legal challenges because the current legal framework, although intended to address conflicting interests,12 was not developed with such projects in mind.13Whilst there is some literature on aspects of offshore islands, there is little direct discussion of the legal implications of the development of larger scale energy islands.14Accordingly, this article provides an analysis of the legal framework for the construction of artificial energy islands at international, European Union (EU) and national levels as applied to the recent plans of the Belgian, Danish and Dutch government.The focus here is first on the distinction in international law between artificial islands and other alternatives, such as 'installations and structures' , to clarify the legal status and implications of 'energy islands' .The second part of the article offers analysis on how the EU legal framework for maritime spatial planning and environmental protection should be applied to the construction of artificial islands.The national legal frameworks of the States actively investigating the construction of artificial energy islands differ considerably from each other.The third part of the article therefore considers the extent to which the national legal frameworks of Belgium, Denmark and the Netherlands enable the construction of artificial islands.This question will be answered using a comparative approach.The article concludes with artificial island developments in the Gulf' (2022) 14(9) Sustainability 5027, 1-20; L Smith, P Cornillon, D Rudnickas and CB Mouw, 'Evidence of environmental changes caused by Chinese island-building' (2019) 9 Nature Scientific Reports 5295, 1-11.12 Especially the international law of the sea, maritime spatial planning law and environmental law (OSPAR, general EU environmental law applied to the sea) are designed for weighing and balancing different conflicting interests related to the sea.They will be treated in more detail below.recommendations on how to adapt the legal framework taking into account future developments related to artificial energy islands.

International Law Applied to Artificial Energy Islands
International law determines the extent to which States have jurisdiction over a particular location or activity.It also provides rules to balance States' conflicting interests.This section elaborates on the status of artificial islands under the law of the sea and the jurisdiction of coastal States over artificial islands.How the law balances different interests that may come into conflict with respect to artificial islands, such as shipping and navigation is then assessed.Finally, the legal framework for environmental preservation is examined.

Status of Artificial Islands in the LOSC Framework
The United Nations Convention on the Law of the Sea (LOSC) establishes the international legal framework regarding the use of the sea and constructions therein.15It provides that the coastal State has sovereign rights for the exploration and exploitation of natural resources (including energy resources) in the 'exclusive economic zone' (EEZ) and on the continental shelf.16In order to facilitate these sovereign rights, the LOSC also creates a form of jurisdiction specifically for (amongst others) artificial islands, installations and structures.17This type of jurisdiction is termed a functional jurisdiction, as opposed to (full) territorial jurisdiction.18It should be noted that (functional) jurisdiction does not automatically entail that all national laws are applicable at sea: first, a coastal State must officially proclaim an EEZ (through domestic law)19 and, second, the national law in question must specify whether its provisions apply at sea.Article 60 provides that 'the coastal State shall have the exclusive right to construct and to authorise and regulate the construction, operation and use of (a) artificial islands; (b) installations and structures for the purposes provided for in article 56 and other economic purposes' .This article provides the basis for coastal States' jurisdiction over artificial islands, installations and structures.20As there are some differences in the rules applicable to artificial islands on the one hand and installations and structures on the other hand (see discussion below), it is important to know whether a certain project qualifies as an artificial island or as an installation or structure.
Unfortunately, neither installations nor artificial islands are explicitly defined in the LOSC.21However, the LOSC defines an 'island' as 'a naturally formed area of land, surrounded by water, which is above water at high tide' .22Analogously, an artificial island would then be defined as 'a man-made area of land, surrounded by water, which is above water at high tide' .Although the latter element (above water at high tide) is mentioned in the academic literature as a relevant criterion,23 many offshore installations, such as oil and gas production platforms, weather stations and offshore wind turbines and their converter stations, are also permanently above water -thus, this is an insufficient means of distinguishing artificial islands from installations.Therefore, the former element (land) is of crucial importance.The term 'land' is also not defined in the LOSC.Based on a functional interpretation, both the material the object is made of and the 'column' between the surface and the seabed has a meaning.Concerning the main material, 'land' is generally understood to be made of (a combination of) solid types of ground such as sand, clay or rocks.In The column between the surface of the object and the seabed can be more or less solid:25 a steel construction is mainly open and, thus, much lighter than a solid column of sand, clay or rocks.As will be explained below, the materials used and whether it is an island or an installation have a bearing on the removal obligation.

Balancing Different Interests: Artificial Islands, Shipping and Fisheries
The framework of the law of the sea seeks to balance conflicting interests.In the context of this article, the main conflict is between the right of the coastal State to exploit its natural resources and to develop artificial islands (as well as installations and structures) for this purpose, and the interests of other States in navigating and fishing in a sea free of obstacles: this balance of interests is part of the LOSC already: in exercising their rights and duties in the EEZ, the coastal States shall have due regard to the interests of other parties.26There are various instances where this balance becomes clear: planning (location choice), development, and decommissioning.

Planning and Location Choice
In the planning and location choice, coastal States have the first opportunity to decide how to balance different interests regarding the use of the sea.The LOSC provides that artificial islands, installations and structures (as well as their safety zones) 'may not be established where interference may be caused to the use of recognized sea lanes essential to international navigation' .27Next to this specific article, as mentioned above, the general obligation of having due regard to other States is relevant as well.In the context of planning and location choice, this could mean identifying the interests of other States in the proposed area in a maritime spatial plan (see dedicated discussion below) and

24
It should be noted that concrete is a mixture of cement, water and sand or gravel.Parts of an artificial island may also be built of concrete, such as a quay.As such, there is an overlap between the materials used for artificial islands and for installations and structures.25 As Oude Elferink (n 20) formulates it in para 5: 'man-made or natural materials that are piled on the seabed to form an area of land' .26 The refraining from siting artificial islands in important fishing grounds.Moreover, the LOSC prevents strategic construction of objects by making clear that their development does not affect the delimitation of maritime zones.28

Development
In the development and operational phase, balancing interests occurs by ensuring maritime safety and avoiding collisions, by warning other users of the sea for the presence of a new object: from the start of construction activities, due notice must be given of artificial islands, installations and structures -and from that moment onwards, permanent means of warning must be used.29Moreover, coastal States may establish reasonable safety zones around the object.30The breadth of such safety zones shall not exceed 500 metres around the object, and should be designed in a way that is reasonably related to the nature and function of the island.31The latter rule helps to limit the impact on other users of the sea to the minimum necessary to ensure nautical safety around the object.

Decommissioning and Removal
The impact of installations and structures on other users of the sea is time limited through the inclusion of the obligation to remove such an object at the end of its lifetime.32As soon as an installation or structure is no longer in use, the interest of its owner to keep it in place is no longer there.Instead, the interest of other users of the sea in having the obstacle to the freedom of navigation removed prevails.33Notably, artificial islands are omitted from Legal Framework for Artificial Energy Islands The International Journal of Marine and Coastal Law 38 (2023) 1-34 the wording of the removal provision.34This omission implies that States during the Third United Nations Conference on the Law of the Sea intended to exclude artificial islands from the removal obligation, either intentionally or to indicate that artificial islands are expected to be of permanent use.The materials used and the foundation (steel structure or many thousands' cubic metres of sand and rocks) also determine the ease of removal: an installation with a steel foundation (and a topside) is easier to remove than an artificial island.35The expected ease or difficulty of removal may also explain the difference in removal obligations between artificial islands on the one hand and installations and structures on the other hand.36In conclusion, coastal States should take into consideration applicable removal obligations when deciding whether to construct artificial islands or use an alternative installation or structure.

Protection of the Marine Environment
International and EU law establish important obligations to protect the marine environment.Under the LOSC, States have the duty to protect the environment (irrespective of whether they are coastal States or land-locked States).37 Protection of the environment entails prevention and control of pollution, protection and preservation of rare or fragile ecosystems and habitats, and the prevention of damage by pollution from other States.38Against this background, the LOSC creates a legal framework for the monitoring, enforcement and safeguarding of this duty.39The LOSC also refers to other conventions for the protection of the marine environment concluded both before and after the  Environment in the North-East Atlantic 1992 (OSPAR),42 to which Belgium, Denmark and the Netherlands are signatories.
The construction of artificial islands may have an adverse impact on fragile ecosystems, depending on the location of the site and the wider condition of the marine environment.Although States should seek to balance different interests, there is a duty upon States to take measures 'necessary to protect and preserve rare or fragile ecosystems' .43This applies to both the siting of the island and dredging activities to collect materials to construct the island.This is important because, in the case of the North Sea, the Dogger Bank is a relatively fragile area that is also considered a potential location for an energy island due to its relatively shallow waters, which make it easier to develop wind turbines.44Another activity that is directly linked to the development of an island is the dredging and placement of certain materials to construct the island.The London Convention excludes this activity from the definition of dumping as long as the placement of the materials is not contrary to the aims of the Convention.45 The aim of the Convention is the prevention of pollution, and that means that it is important that the materials do not pollute the sea, for example, by making sure that dredged material (sand/sludge) that is used to create the foundation of an island does not contain pollutants above certain thresholds.The OSPAR Convention also excludes 'placement of matter for a purpose other than the mere disposal thereof' from the definition of dumping.46

EU Law Applicable to Artificial Energy Islands
As Belgium, Denmark and the Netherlands are Member States of the EU, the influence of the EU legal order on the legal framework applicable to artificial islands is not to be underestimated.In this section, the applicability of EU law at sea (jurisdiction, competences, material applicability of secondary EU law) is discussed.Next, important topics of EU substantive law pertaining to the development of artificial islands are analysed, namely, maritime spatial planning, ecology and environmental protection, and energy law.

Legal Framework for Artificial Energy Islands
The International Journal of Marine and Coastal Law 38 (2023) 1-34

Applicability of EU Law
A key issue is the extent to which EU law applies to marine areas and so applies to and regulates the development of artificial energy islands.There are various issues to consider relating to the geographical scope of EU jurisdiction, the division of competences between the EU and the Member States and the material applicability of secondary EU law beyond the territory of the EU Member States.
First, as regards the geographical scope of jurisdiction of the EU, the Member States can only bestow jurisdiction upon the EU in so far as they themselves have jurisdiction.This is important for artificial energy islands because whilst States have sovereignty and hence near plenary jurisdiction in the territorial sea, jurisdiction is limited beyond the 12-nautical mile (M) zone.It is well established in EU case law that EU jurisdiction follows the jurisdiction of its Member States.47For example, in Commission v. UK (Habitats Directive), it was held that that the EU has jurisdiction when the Member State has exercised its own jurisdiction (in the EEZ).48To the contrary, in Aktiebolaget v. Skatteverket it was established that EU law (the VAT Directive) did not apply to a telecommunications cable,49 as this cable was laid under the freedom to lay cables and not coastal State jurisdiction.50Applying this principle to artificial islands, it follows that the functional jurisdiction States enjoy as per Article 60 of the LOSC can be exercised by the EU as soon as the coastal States make use of their jurisdiction under the LOSC.51 The second issue is the division of competence between the EU and the Member States.The competence of the EU visàvis the competence of the Member States, be it exclusive or shared,52 differs per topic.Under Article 4(2) of the Treaty on the Functioning of the European Union (TFEU), there is shared competence over the environment, energy, transport and fisheries (there is an exception for the conservation of marine biological resources, which is exclusive to the EU).53However, where the EU exercises competence over such matters, this limits the competence of the Member State.54Applied to energy islands, it is important to understand that the EU has exercised its competence on several important issues, such as maritime spatial planning, environmental law and energy law.
Third, the applicability of secondary EU law also depends on the specific wording of each EU legal instrument regarding its geographical scope.When the wording is unclear, an extensive interpretation is used.The Maritime Spatial Planning Directive (MSP Directive or MSPD) is unambiguous, it applies to all marine waters of the EU Member States.55However, the Habitats Directive is more difficult in this regard.The geographical scope is formulated as the 'European territory of the Member States to which the Treaty applies' .56The word 'territory' implies a limitation to apply the Directive beyond the territorial waters.However, the European Court of Justice has since confirmed that the Habitats Directive does apply beyond the territorial waters as soon as coastal States exercise their sovereign rights.57A recommendation to avoid confusion with regard to artificial islands is to avoid referring to the territory of the EU Member States in future legislative revisions of the relevant legal documents when the legislation is also supposed to be applicable to activities in the EEZ.

Maritime Spatial Planning
The Maritime Spatial Planning Directive requires Member States to develop maritime spatial plans, through which coastal States should contribute to the sustainable development of various sea-bound sectors and the preservation, protection and improvement of the environment.58The Directive aims for a coordinated approach between the Member States, with the purpose to reduce frictions and to identify potential conflicts early in the spatial planning process.59Moreover, there is also a duty to cooperate with third States,60 which is relevant in light of the balancing of different interests as developed in the LOSC (see above), especially in the North Sea which is intensively used for shipping and fisheries.Member States with maritime areas are obliged to draft maritime spatial plans and to consult each other on such plans.61Moreover, these plans should be revised regularly, at least once every ten years.62 The inclusion of artificial islands in maritime spatial plans is important in order to reduce friction in later stages of the development process.Member States have to cooperate with each other in the planning and management processes.63This should ensure coherence and coordination of plans and guarantee that Member States are informed at an early stage of spatial planning developments with potential transboundary impacts,64 such as artificial islands.In this context, it makes sense that Member States discuss any plans to develop artificial islands or large installations with neighbouring States in a structured maritime spatial planning process.An interesting development in this regard is that Belgium aims to develop an artificial island without having introduced this in its most recent maritime spatial plan.65

Ecology and Environmental Protection
For decades, the EU has been involved in the protection of the environment in general, as well as the protection of specific habitats and species.As there may be conflicts between the development of artificial islands and the protection of the environment and habitats or species in the same area, it is important to assess how EU environmental law applies to the development of artificial In the comparative analysis below, the translation of the MSP Directive in Belgian, Danish and Dutch policy and law and its application to artificial energy islands will be discussed in more detail.energy islands.The Marine Strategy Framework Directive (MFSD)66 is of general importance for the environmental protection of the seas, including the Northern Seas.67Before discussing the specific requirements of the MSFD, it should be noted that it closely links to the obligations that regional States have accepted under the OSPAR Convention.Both instruments require their Member States and signatories to take measures to preserve the marine environment and to develop strategies to this end, and for the authorities concerned to cooperate in implementing the protection strategies.68 In essence, the obligations of EU Member States include efforts to reduce and prevent pollution.69Pollution is defined as 'the introduction of human induced substances or energy in the marine environment which results or is likely to result in deleterious effects such as harm to living resources and marine ecosystems' .70In the case of the construction of an artificial island, the duty to prevent pollution becomes relevant since it would require Member States not to introduce pollutants, for example, through the materials the island is made of.The inclusion of 'energy' in the definition also means that underwater vibrations and noise from the construction activities (and any wind turbines surrounding the artificial island), as well as electromagnetic energy and thermal radiation from submarine cables, are covered.71Unlike OSPAR, the MSFD does not have a specific provision on dumping or exclude certain activities from the definition of dumping.72However, it does indirectly deal with the topic of dumping, as the coastal State must take into account the impacts and anthropogenic pressures affecting the marine environment, including 'input of substances' as well as physical disturbance and loss (due to permanent change of seabed).73 Member States are required to adopt a marine strategy which ensures that 'good environmental status' of their marine areas is achieved and maintained.74Good environmental status does not preclude the construction of artificial islands, but the construction activities or the existence of the artificial island as such should not adversely affect the good environmental status of the marine environment.Whether this is the case can be assessed using the qualitative descriptors in Annex I of the MSFD.There are a few descriptors that are relevant for the construction of artificial islands.Firstly, the integrity of the seafloor should be at a level that ensures the structure and functions of ecosystems.75Both the construction activities and the presence of an artificial island could affect seafloor integrity.Therefore, coastal States could consider taking mitigating measures to ensure seafloor integrity.Secondly, permanent alteration of hydrographic conditions should not adversely affect marine ecosystems.76Again, both the construction activity and the presence of the island could give rise to alterations in hydrographic conditions.Finally, the introduction of energy, including underwater noise, should be at levels that do not adversely affect the marine environment.The presence of an artificial island as such does not in itself generate underwater noise or other types of energy, but construction activities may cause underwater noise or other vibrations.Moreover, for various activities related to an artificial energy island, such as offshore wind turbines (underwater noise) or cables (small amounts of radiation, heat, magnetism), this Directive should be taken into consideration.
An important nuance to the protection framework of the Marine Strategy Framework Directive is that Member States may identify instances where a good environmental status cannot be reached in every aspect due to 'actions taken for reasons of overriding public interest which outweigh the negative impact on the environment, including any transboundary impact' .77It must be noted that this is not a carte blanche, it can only exempt the Member State from meeting all targets in a certain location.However, the State is still obliged to take all appropriate measures to achieve the environmental targets and, as much as possible, take measures to prevent deterioration and take mitigating measures.78 The transition to a low-carbon energy supply, or more generally, the achievement of the climate objectives, could qualify as an overriding public interest.It may be argued that such priorities outweigh possible local negative impacts.Interestingly, contrary to other environmental legal frameworks,79 the MSFD does not require Member States to examine whether there are alternatives to the activity or alternative locations.The activity should also not prevent other Member States from reaching their targets, nor the attainments of targets at the (sub)regional level.80Finally, Member States should still prevent deviation from the targets as much as possible by taking ad hoc measures.81 In addition to the general protection of the marine environment, the Habitats Directive and the Birds Directive aim to preserve specific habitats and bird species, respectively.82These Directives provide Member States with a process to demarcate areas in which special thresholds for protection are applicable (the so-called Natura 2000 network).83These areas have been identified and include several potential locations for artificial energy islands, such as Dogger Bank, Cleaver Bank, Horns Rev and Frisian Front.84Demarcation as protected area in the Natura 2000 network does not preclude the construction of islands if these are necessary for imperative reasons of overriding public interest, but it requires the Member State first to assess whether there are alternatives, and if there are none, to take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected.85 Next to environmental protection based on species and habitats, the EU also provides for a system of environmental protection based on activities, including building/development projects (environmental impact assessment or EIA) and public plans and policies (strategic environmental assessment or SEA).The Environmental Impact Assessment Directive is applicable to activities likely to have significant effects on the environment.86The Directive differentiates between activities for which an EIA is compulsory (Annex I) and activities for which national authorities can decide to make an EIA compulsory (Annex II).87Although the construction of energy islands was not originally provided for in the Directive, and thus not included in the wording, certain

Legal Framework for Artificial Energy Islands
The International Journal of Marine and Coastal Law 38 (2023) 1-34 activities in the Annexes are relevant to the construction of artificial islands.88Member States could seek the advice of the European Commission on this matter.For instance, Annex I mentions '[t]rading ports, piers for loading and unloading connected to land and outside ports (excluding ferry piers) which can take vessels of over 1 350 tonnes' .89This is to be interpreted as both inland ports and sea ports,90 and it is to be expected that an artificial energy island will be equipped with a port for vessels of at least this tonnage.91Another relevant Annex I activity, depending on the design and construction strategy of the island, is '[d]ams and other installations designed for the holding back or permanent storage of water, where a new or additional amount of water held back or stored exceeds 10 million cubic metres' .92Also, Annex II mentions '[c]oastal work to combat erosion and maritime works capable of altering the coast through the construction, for example, of dykes, moles, jetties and other sea defence works, excluding the maintenance and reconstruction of such works' .It can be argued that an artificial island, which is located off the coast, is not affected by this article.93 However, with a teleological interpretation,94 it can be argued that such infrastructure work related to offshore islands would also be covered, as well as other infrastructure used to hold back water that is not covered by Annex I (as a mirror provision of Annex I, 15, again, depending on the design of the island).95Additionally, with regard to the activities that will ultimately take place on an island or in its vicinity, Annex II mentions several activities related to the energy system, including the construction of wind turbines and

88
Interestingly, as the analysis below shows, an EIA may be required for certain elements, such as the port, but not for the potentially much more significant engineering of the island itself.

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The International Journal of Marine and Coastal Law 38 (2023) 1-34 pipelines, which is relevant if the island is used for hydrogen production.96Interestingly, no specific mention is made of the development of offshore installations as such, so the rules here are stricter for artificial islands than for installations.Finally, coastal States may also require an EIA even if the activity is not specifically mentioned.97The list of criteria for a case-by-case analysis (Annex III) includes the size and design of the project, as well as the location and characteristics of the potential impact.Based on these criteria, it is likely that Member States conclude that an EIA is necessary.
Before an energy island is developed, it will already be part of public plans and policies, such as the maritime spatial plans and policies mentioned below.When such plans and policies are likely to have significant environmental effects, authorities are required to provide a SEA.98With this obligation, the environmental effects of artificial islands (or large installations) will have to be taken into consideration long before the plans are executed and an EIA has to be performed.

EU Energy Law
The artificial islands described here are mainly intended for activities related to the energy sector (electricity and hydrogen).The EU has developed an extensive framework for rules pertaining to the electricity sector.99Of particular relevance to the development of energy islands are the provisions on unbundling (vertical separation) of electricity generation, transmission and distribution,100 non-discriminatory access to electricity infrastructure,101 and interconnection of electricity networks.102For hydrogen, although the European Commission has developed policy (a hydrogen strategy), the legal framework is still in development.electricity infrastructure, such as generation facilities and cables, the right to own and operate them is of particular importance.As enshrined in the Electricity Directive, transmission and distribution (system) operators may not own or operate generation facilities or engage in the supply of electricity.104Similar rules are expected to be adopted at the EU level for hydrogen infrastructure; system operators of hydrogen networks will most likely need to be vertically separated from hydrogen production and supply activities.105Hence, the structure for the ownership and operation of energy infrastructure to be deployed on and in the vicinity of an artificial energy island needs to be defined, especially if system operators are to be involved in the development, ownership and/or operation of the island itself, which is the case in Belgium.
The Electricity Directive also requires that Member States adopt an authorisation procedure for new generation capacity, but not for new electricity cables or other transmission infrastructure.106Although there are no similar rules (yet) for the construction of hydrogen production facilities, the licensing regime for the construction of new energy production facilities should be aligned with the applicable licensing regime at the national level for the construction of an artificial energy island.In view of this, it must be determined whether distinct licenses are necessary for constructing the energy island and for the energy infrastructure either on or in the vicinity of the island.

Comparative Analysis of the Regulation of Artificial Energy Islands in Belgium, Denmark and the Netherlands
Although international and EU law provide rules relevant to the construction of an artificial energy island, it is necessary to assess whether the national legal 803 final 2021/0425 (COD), which contains general rules on ownership and access to infrastructure.See also the Commission Delegated Regulation (EU) supplementing Directive (EU) 2018/2001 of the European Parliament and of the Council by establishing a Union methodology setting out detailed rules for the production of renewable liquid and gaseous transport fuels of non-biological origin, Brussels, 10 February 2023 C(2023) 1087 final, which includes a methodology for determining whether hydrogen can be considered fully renewable.This is relevant for the context of hydrogen produced at artificial islands, as it depends on whether the electricity used to produce the hydrogen is renewable.frameworks of the coastal States enable such developments.As mentioned in the introduction, Belgium, Denmark and the Netherlands are currently most advanced in their plans to deploy artificial energy islands.The following discussion, therefore, provides a comparative assessment of the legal frameworks of these States pertaining to the development of artificial energy islands, based on the analysis above on EU legislation applicable to such islands.Importantly, it is the responsibility of the Member States to ensure that the development of artificial energy islands is compatible with the international and EU environmental and energy law.
This section focuses on maritime spatial planning, the policy framework relevant to the construction of artificial islands, the applicable permitting procedures and an assessment of the potential legal barriers that may prevent such development.These are the first steps that need to be taken by the States to facilitate the development of artificial energy islands and will be critical to determining whether and how energy island developments will proceed.

Overview of Maritime Spatial Planning
In recent decades, human activities in the Northern Seas have increased significantly, requiring a coordinated approach to the use of the marine space.107As mentioned above, the MSP Directive has been implemented in Belgium, Denmark and the Netherlands; hence, the national implementing measures are relevant to the future development of energy islands in the Northern Seas.Maritime spatial plans in these States are prepared by the national or regional maritime authorities, and officially adopted by the relevant minister in the form of an official government decree or decision.108 Belgium has a long history of maritime spatial planning, with the first maritime spatial plan dating back to 2003.109The Act on the Maritime Environment implements both the MSP Directive and other international and EU legal instruments on the protection of the marine environment.110The current maritime spatial plan, issued in 2020, does not mention the construction of artificial islands.It is not stated in the long-term vision, but the plan does specify that energy infrastructure (cables and pipelines) are constructed to facilitate the development of a European energy infrastructure.111 Denmark implemented the MSP Directive in 2016 with the adoption of the Maritime Spatial Planning Act (Lov om maritim fysisk planlaegning).112Despite the adoption of this Act, Denmark had no holistic spatial plan for its maritime spaces prior to 2021.113Nevertheless, several sectoral plans that apply to the sea have contributed to the maritime spatial planning process.114The first holistic maritime spatial plan, issued in 2021,115 was issued as an executive order and is legally binding.The plan determines which sea areas in Danish waters can be used for specific offshore activities and influences permitting procedures: permits can in principle only be granted for activities that fit within the maritime spatial plan.
In the Netherlands, maritime spatial planning is part of the 2009 Water Act (Waterwet).116Pursuant to the Act, the government drafts a 'National Water Plan' , which encompasses both inland waters and the sea.117 The part of the National Water Plan that applies to the North Sea satisfies the requirements of a maritime spatial plan for the purpose of the MSPD.118In addition to the

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The International Journal of Marine and Coastal Law 38 (2023) 1-34 National Water Plan, the North Sea 2050 Spatial Agenda is also important for maritime spatial planning as it constitutes a long-term vision for the Dutch North Sea.119In contrast to Belgian and Danish maritime spatial planning, the temporal scope of the Dutch maritime spatial planning process is wider due to the inclusion of the 2050 Spatial Agenda.Given the lengthy development trajectory of energy islands, the Dutch approach -with its extended temporal scope -may provide greater certainty for developers of energy islands.
A common denominator of the maritime spatial planning plans of these States is that they aim to contribute to the sustainable development of the sea and to strike a balance between various offshore activities.120Hence, the material scope of the plans covers the same themes, albeit with different wording.Regarding energy islands, the Dutch North Sea Programme 2022-2027 mentions them explicitly: as an action point, the Dutch national government takes the lead in initiating energy hubs and it is responsible for assessing different forms and constructions (i.e., artificial islands or installations/structures).121 Although energy islands are not explicitly mentioned in the Danish Maritime Spatial Planning Act, the framework for the development of such islands is included in the Danish maritime spatial plan of 2021.122Interestingly, although Belgium is the most advanced with plans for an energy island, this type of development is not mentioned in the Belgian maritime spatial plan.
The national maritime spatial plans constitute the overall planning framework for activities at sea and provide the framework within which competent authorities in these States can grant permits for offshore activities.However, whether a permit can be granted for a specific activity in a specific area that is designated as suitable for such use according to the maritime spatial plan depends on sector-specific legislation.As such, the designation of areas in maritime spatial plans for specific activities does not in itself imply a right to use the area for the activity in question.The following sections analyse the inclusion of energy islands in national policies and legislation.

Policy and Guidelines Relevant to the Development of Energy Islands
The transition to a sustainable offshore energy system is driven by the need to reduce greenhouse gas emissions to combat climate change.Belgium,

Legal Framework for Artificial Energy Islands
The International Journal of Marine and Coastal Law 38 (2023) 1-34 Denmark and the Netherlands have all adopted ambitious national Climate Agreements outlining the policies and measures essential for achieving their respective targets, as well as the European Union's 2050 climate neutrality objective.123Belgium has a binding near-term target to reduce emissions with 35 per cent by 2030.124The Danish Climate Act (Klimaloven) sets a near-term target of reducing the country's total greenhouse gas emissions by 70 per cent by 2030 and a long-term target of achieving climate neutrality by 2050 at the latest.125 The objective of the Netherlands, as stipulated in the Climate Act (Klimaatwet), is to reduce its greenhouse gas emissions by 49 per cent by 2030 and by 95 per cent by 2050.126 To achieve the latter target, the Netherlands aims for carbon-neutral electricity generation by 2050.127 One of the initiatives in the Danish Climate Agreement is the development of the world's first energy islands,128 one in the North Sea and one in the Baltic Sea.129 The energy island at Bornholm in the Baltic Sea will serve as a hub for offshore wind farms off the coast supplying 2 GW of energy.130 The energy island in the North Sea will serve as a hub for offshore wind farms supplying 3 GW of energy, with a long-term expansion potential of 10 GW.131This initiative is being planned jointly by the Danish Ministry of Climate, Energy and Utilities and the Danish Energy Agency.Geological experts have already investigated shallow areas in the North Sea of relevance for the construction of the energy island.Following these assessments, the parties to the Energy Agreement of 2018 decided on the approximate location of the island, which lies about 80 kilometres off the coast of Denmark (in the EEZ).132Furthermore, the parties to the Agreement rejected a platform solution for the island, and decided that the energy island would be constructed as reclaimed land.133Nevertheless, various construction options are still being considered, including a sand-based island, steel platforms or a large concrete container that is lowered into place and filled with stone material.134Moreover, work was initiated on preparing the foundation for international connections and political agreements were reached with Germany, the Netherlands and Belgium in 2020 and 2021.135These agreements provide the basis for cooperation between the transmission system operators, which will investigate possibilities to connect the island to the various States.Additionally, another agreement was reached establishing that the Danish State would be the majority owner of the island in partnership with one or several private actors.136This agreement determines important parts of the framework for the specific preparation of the tender for the energy island, including the drafting of the tender conditions regarding the partnership and the establishment of the island, as well as the conditions for the long-term ownership of and cooperation on the island.137 Despite the lack of similar concrete plans in the Netherlands, the Dutch Climate Agreement also recognises that a cost-effective integration of additional levels of offshore wind energy in the North Sea may require the establishment of energy hubs, including artificial (energy) islands.138Although the development of an artificial island was mentioned in both the North Sea 2050 Spatial Agenda and the Policy Document on the North Sea 2016-2021, there is no further details regarding the size, location or function of an energy island.There is also a lack of clarity regarding the timescale for developing such an island.Indeed, the first guiding statements on how to manage artificial islands in the Dutch North Sea were presented in the North Sea 2022-2027 Programme The International Journal of Marine and Coastal Law 38 (2023) 1-34 published in 2022.139In light of the expected growth of offshore wind energy after 2030, the policy document explicitly acknowledges that the possibility of artificial islands remains open.140Furthermore, the policy document emphasises that the realisation of artificial islands involves long preparation times and, even if no artificial islands are to be developed within this planning period, it is crucial to make the necessary preparations for the coming years.141 Whereas Denmark uses a narrow definition of an artificial island (namely, an area of land reclamation surrounded by the sea), policy documents indicate that the Netherlands will recognise large-scale works or platforms (semi) permanently anchored to the seabed as artificial (energy) islands.142 As already discussed in the section above on the status of artificial islands under the LOSC, there is a risk that it will be difficult to legally distinguish between an artificial island and an installation.In order to provide legal certainty regarding the rules applicable to an artificial (energy) island, Dutch legislation should provide a clear definition specifying the difference between these terms.
Similar to Denmark, the Netherlands has decided to take a directive role in developing, building, managing and exploiting artificial islands in light of the fact that the State will be responsible in the broadest sense for ensuring the safety on such islands-'this concerns territorial, physical economic safety, ecological protection, political stability and legal order' .143Additionally, artificial islands will only be developed for vital (energy) infrastructure for which the government has legal responsibility.The (semi) permanent character of artificial islands also makes it desirable to be able to adapt their function.Therefore, the government will have an initiating role and decide on the necessity, function and management of artificial islands.Unlike the Danish approach, where private actors are invited to participate in a tender procedure, in the Netherlands private actors only seem to be involved in the development phase of artificial islands to provide ideas and insights.144Exactly how this involvement will be organised in the Netherlands is not clear from the policy documents.
Although the Netherlands does not have a concrete plan for the development of artificial islands in the North Sea, the guiding statements on artificial islands provide cumulative conditions that must be met for the development of such islands.An artificial island can only be developed if The International Journal of Marine and Coastal Law 38 (2023) 1-34 (i) it is for an activity of national importance145 for which there is 'a need to take place at sea and for which there is no reasonable alternative on land';146 (ii) its location, function and management method meet national and international safety criteria;147 and (iii) its location is determined by the government, which strives for efficient use of space.'148Similar to the Danish strategy, the Dutch government intends to determine where such islands may be developed.The nature of this location assessment is not further clarified in the guiding statements.As regards the actions to be taken in the Netherlands, the government will assess the usefulness, necessity and feasibility of one or more energy hubs, possibly in the form of an artificial island.If such usefulness and necessity is demonstrated for an artificial (energy) island, taking into consideration ecological and spatial implications as examined in the section above on EU law applicable to artificial energy islands, the government will initiate further research and explorations.As such, it is similar to a scoping decision, which may determine whether and what additional details may be required.Furthermore, it must be decided whether additional safety standards are needed with regard to water safety and the external safety of the infrastructure, or whether this can be included in the project decision.149In the policy document, it also is emphasised that it is a priority to declare Dutch legislation applicable to such an island (see dedicated section below).150 The Belgian approach differs from the Danish and Dutch approach in several ways: first, the policy has evolved more quickly.No mention of artificial islands was made in the Maritime Spatial Plan adopted in 2020,151 but construction activities are now planned to start in 2024 already.152Another significant dif-

Nieuwenhout and Andreasson
The International Journal of Marine and Coastal Law 38 (2023) 1-34 Island in the North Sea in December 2021.157The Act is an important step in the realisation of the island, as it provides broad authority for the preparation and design of the island and establishes the overall legal framework for construction activities.158 The Ministry of Climate, Energy and Utilities has been authorised to take the necessary design steps, including holding tenders for ownership and construction work for the island, and for entering into contracts with the winning parties.159The public-private partnership anticipated for the ownership and operation of the energy island is not defined in the Act.As specified in the 'Tender-preparing partial agreement regarding the long-term framework of a call for tenders and ownership of the energy island in the North Sea' , it has been agreed to establish an ownership model structured as a public limited company operating on commercial terms where the Danish State owns at least 50.1 per cent of the company's shares.160 The expected location of the energy island is included in Appendix 1 of the Act, but the exact location is to be determined in the construction permit for the island.161Although the Act itself does not constitute a permit for the construction of the energy island, the Ministry of Climate, Energy and Utilities has been authorised to grant this permit on the basis of the project description and the application submitted by the project applicant under the Act.162 The Ministry may lay down more detailed rules on the requirements applicable to the energy island and prescribe in the permit conditions requirements for subsequent maintenance and operation of the island.163 Once the tender for the artificial island has been completed, the winner must complete the necessary nature and environmental assessments, as described above under EU environmental law.164 In addition to the Danish energy island itself, offshore wind turbines, electricity transmission grids and international cable connections to other States will have to be developed.However, these other elements associated with the energy island are not covered by the provisions of the Act on the Design and Construction of an Energy Island in the North Sea.165 The effect of this is that The International Journal of Marine and Coastal Law 38 (2023) 1-34 the establishment of offshore electricity generation facilities on, and submarine cables connected to, the energy island are governed by sector-specific legislation; more specifically the Renewable Energy Act (Energifremmeloven)166 and the Act on Energinet (Energinetloven),167 which implement the EU energy legislation presented above.
The Netherlands has not adopted a specific act for the construction of an energy island in the North Sea.Nevertheless, there are several acts governing relevant activities in this context: the Wind Energy at Sea Act (Wet windenergie op zee)168 and the Earth Removal Act (Ontgrondingenwet)169 regulate the connection of wind energy and excavation and dredging activities, respectively.170However, these laws do not regulate the island itself, as they lack explicit provisions pertaining to such.171Nevertheless, as will be explained in more detail below, the Earth Removal Act regulates part of the construction process of an island, since the construction involves dredging activities.172 The permit to construct the island could be based on the Water Act and its secondary legislation, the Water Decree (Waterbesluit)173 and the Water Regulation (Waterregeling).174This legislation provides a general legal framework governing all activities occurring in water systems to the extent that such activities are not regulated by sector-specific legislation.175As mentioned above, the Water Act regulates the spatial planning of all water areas in the Netherlands and is applicable to Dutch territorial waters and its EEZ.176 Article 6.5 of the Water Act lists certain activities that are prohibited in national waters without having a water permit granted by the Ministry of Infrastructure and Water Management.Article 6.13 of the Ministerial Water Decree prohibits the use the North Sea for the activities listed below without permission from the Minister, as referred to in Article 6.5 of the Water Act; subsection (c) prohibits the installation or laying down of installations or cables and pipelines, or leaving them in place, while subsection (d) prohibits construction activities.Since the construction of an energy island in the Dutch North Sea falls under subsection (d) specifically, and subsection (c) insofar as installations or cables and pipelines are installed, the law makes it clear that the developer of an energy island must obtain a water permit.177 Unlike the application for a permit under the Danish Act on the Design and Construction of an Energy Island in the North Sea, the application for a water permit under the Dutch Water Act is not competitive.The award of a water permit involves an actor requesting the permit for a particular usage of an area of the concerned water body.This request is assessed against the general purposes of the Act and only when the proposed project is incompatible with these purposes can the Ministry refuse the request.178Article 2.1 of the Water Act stipulates that the purpose of the Water Act is to (a) prevent flooding and water scarcity, (b) assure and improve the chemical and ecological quality of water systems and (c) ensure the performance of the societal functions of the water systems.If the construction of an energy island in the North Sea were to be incompatible with these purposes, the permit application would be rejected.
Pursuant to Article 6.20 of the Water Act, conditions and restrictions can be attached to the Dutch water permit.179 The conditions to be attached may relate to financial security for the fulfilment of obligations under the permit or for covering liability, as well as the removal, compensation or limitation of negative effects of the water system that the activity may cause.However, the conditions and restrictions set by the Water Act are relatively vague.180This may create uncertainty for the applicant of a water permit related to the construction of an energy island, particularly with regard to its size, location and function.In addition, a water permit must not exceed 10 years,181 which is Legal Framework for Artificial Energy Islands The International Journal of Marine and Coastal Law 38 (2023) 1-34 problematic for a developer of an energy island due to its short term.It should, therefore, be clarified in law whether the developer of an energy island could apply for the same permit again, or whether such an island would need to be deconstructed or removed as a result.Although there is no requirement under international law to remove artificial islands as explained above, it should be noted again that the water permit may include conditions and restrictions.Such conditions may possibly include an obligation to remove an energy island if the permit is revoked or terminated.182Comparatively, it should be mentioned that Denmark has not adopted an obligation to remove an energy island in the Act on the Design and Construction of an Energy Island in the North Sea.
The construction of an energy island in the North Sea is likely to involve dredging of material from the seabed.Pursuant to the rules of the Earth Removal Act (Ontgrondingenwet)183 and the Decree on Earth Removal in National Waters (Besluit ontgrondingen in rijkswateren),184 it is thus likely that the construction of an energy island would fall within the scope of these excavation regulations.This would involve submitting a notification prior to and following the construction activities.185Furthermore, to conduct dredging activities, an earth removal permit would have to be obtained.186 The process to obtain an earth removal permit is relatively clear and does not seem to pose any direct legal barriers for developers of energy islands.187However, this does not mean that obtaining such a permit is easy, as certain conditions must be met.It should be noted that spatial planning rules in the Netherlands will be merged, potentially affecting future offshore activities, such as the construction of energy islands.The forthcoming Environment and Planning Act (Omgevingswet) seeks to modernise, harmonise and simplify the current rules applicable to different activities and projects; improved facilitation of construction projects is an important objective of the Act.188Although the Environment and Planning Act has been postponed for years already, it is now expected to enter into force in 2024, and will replace large parts of the Water Act and the Earth Removal Act.
As regards the Belgian legal framework, a permit needs to be obtained for several activities related to the construction of an artificial island: the placement of an offshore installation, the use of machinery with large acoustic impacts, and commercial and industrial activities.189An environmental impact assessment is necessary, as is an advice from the maritime authority (Dienst Marien Milieu) and investigation by the Service on the Mathematical Model of the North Sea (Beheerseenheid Mathematisch Model Noordzee).190 No specific provisions have been adopted on which entities can develop artificial islands.As such, the Belgian legal framework for the development of artificial islands appears to be much simpler than the Danish and Dutch systems.Although a dedicated legal framework for artificial islands is lacking, practical issues have been addressed already: Belgium has adopted rules on safety zones around artificial islands (and other installations).191As the Belgian island will only be used by Elia for electricity transmission infrastructure and related activities, there is no need for specific rules on co-use of the island by various entities and for various activities.
In summary, whereas the Danish and Dutch governments have chosen to take a directive role in the development of artificial energy islands, Belgium is leaving the development of an artificial island to the TSO Elia.The Netherlands is still in an investigative phase, but Denmark has already indicated in its maritime spatial plan where this island is to be developed and has adopted a specific act for such development.It remains to be seen how the Netherlands will approach the potential development of an energy island, and whether the government will adopt a specific law for this purpose.Presently, it can be argued that neither the Danish Act on the Design and Construction of an Energy Island in the North Sea nor the Dutch Water Act provide sufficiently clear and specific procedures for permitting.This is a major issue, both for the potential Legal Framework for Artificial Energy Islands The International Journal of Marine and Coastal Law 38 (2023) 1-34 developers of such an island and for interest groups that may wish to challenge the necessity or location of the artificial island.
Furthermore, the relevant laws lack specific operational and safety rules, which creates legal uncertainty for the developers and operators of such islands.Although some alternative legal arrangements may be attached to a permit, and may provide some legal certainty for the construction and operation of energy islands, these regimes are limited in scope and provide only ad hoc solutions.Denmark and the Netherlands lack clear legal provisions for the operation of such islands.As such, both States will have to develop more specific rules for the construction and operation of energy islands.

Conclusion and Recommendations
The development of artificial energy islands can contribute to the large-scale deployment of offshore wind and the integration thereof in the energy system.Under international law, States are permitted to construct such artificial islands.An important distinction between artificial islands and installations and structures is that there is no obligation to remove artificial islands under the LOSC, whereas installations and structures in principle must be removed when no longer in use.192This is an important element to consider when coastal States make a decision on whether to use an island rather than an installation.In general, EU law is applicable to the development and operation of offshore islands.Although EU law contains no specific provisions on the construction of artificial islands, various elements of the EU acquis, in particular EU environmental legislation, are applicable to the activities associated with the construction of artificial islands and their operation, namely, the Habitats Directive, EIA and SEA Directives, Maritime Spatial Planning Directive and Marine Strategy Framework Directive.
The international and EU legal frameworks give States large discretion in deciding how and by whom artificial islands can be constructed.The approaches of Belgium, Denmark and the Netherlands differ in part and suggest a range of approaches that could be followed by other States considering the development of artificial energy islands.Denmark has adopted a specific act determining the location and the procedure to be followed, the Netherlands

LOSC. 40
Of relevance to the construction of islands are the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter 1972 (London Convention)41 and the Convention for the Protection of the Marine 104 Electricity Directive (n 99), Articles 35, 43-48.105 See the proposed provisions on unbundling of natural gas and hydrogen networks in the Proposal for a Directive of the European Parliament and of the Council on common rules for the internal markets in renewable and natural gases and in hydrogen COM(2021) 803 final.106 Electricity Directive (n 99), Article 8(1) and (2).Downloaded from Brill.com 11/12/2023 03:32:56AM via Open Access.This is an open access article distributed under the terms of the CC BY 4.0 license.https://creativecommons.org/licenses/by/4.0/The International Journal of Marine and Coastal Law 38 (2023) 1-34 of Marine and Coastal Law 38 (2023) 1-34 Proceedings of the Hamburg International Conference of Logistics (HICL), vol.28 (epubli GmbH, Berlin, 2019) 55-82.9 European Commission, 'An EU Strategy to harness the potential of offshore renewable energy for a climate neutral future' (Communication) COM (2020) 741 final, p. 12 [EU Offshore Renewable Energy Strategy]. 10 See for Denmark, Climate Agreement for Energy and Industry 2020 (Klimaaftale for energi og industry mv. 2020) of 22 June 2020; see for the Netherlands, National Climate Agreement (Klimaatakkoord) of 28 June 2019.11 This topic was already assessed in 1979, but more recent resources are lacking.See SJ de Groot, 'An assessment of the potential environmental impact of large-scale sand- 8 J Steendijk and W Beelaerts van Blokland, 'Optimization of maintenance operations for offshore wind farms' in C Jahn, W Kersten, CM Ringle (eds), Digital Transformation in Maritime and City Logistics: Smart Solutions for Logistics 2019, dredging for the building of artificial islands in the North Sea' (1979) 5(3) Ocean Manage ment 211-232 for a structural review of the impact of the dredging activities.For other regions, more recent information is available: see M Salman Afzal, F Tahir and SG Al-Ghamdi, 'Recommendations and strategies to mitigate environmental implications of Downloaded from Brill.com 11/12/2023 03:32:56AM via Open Access.This is an open access article distributed under the terms of the CC BY 4.0 license.https://creativecommons.org/licenses/by/4.0/ This begs the question whether States must practice their jurisdiction or simply claim the EEZ in order for EU law to apply.Based on the wording of the Habitats case (n 48), para 115, EU law applies where the coastal State exercises its sovereign powers.Therefore, claiming an EEZ does not automatically make EU law applicable to the entire EEZ.However, when a coastal State develops an artificial island, it makes use of its sovereign rights, which implies that the coastal State must comply with the relevant EU law in that area.
47J Waverijn and CT Nieuwenhout, 'Swimming in ECJ case law: The rocky journey to EU law applicability in the continental shelf and exclusive economic zone' (2019) 56(6) Common Market Law Review 1623-1648.48 Case C-6/04, Commission v. United Kingdom (Habitats Directive), EU:C:2005:626, para 115 [Habitats].A similar conclusion was reached in Case C-347/10, Salemink v. Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen, EU:C:2012:17, para 60. 49 Case C-111/05, Aktiebolaget NN v. Skatteverket, ECLI:EU:C:2007:195.50 LOSC (n 15), Article 87(1)(c) combined with Article 58(1).51 52 European Union, Treaty on European Union (Consolidated Version), Treaty of Maastricht, 7 February 1992, Official Journal of the European Communities C 325/5 (24 December 2002), Article 5(2); European Union, Consolidated version of the Treaty on the Functioning Downloaded from Brill.com 11/12/2023 03:32:56AM via Open Access.This is an open access article distributed under the terms of the CC BY 4.0 license.https://creativecommons.org/licenses/by/4.0/Nieuwenhout and Andreasson The International Journal of Marine and Coastal Law 38 (2023) 1-34 Article 11. 64 Beyond the Directive, this is also one of the goals of the Convention on Environmental Impact Assessment in a Transboundary Context (Espoo, 25 February 1991, in force 10 September 1997) 1989 UNTS 309.This convention is signed and ratified by a wider group of countries on the European continent.The notification obligation is laid down in Article 3. The list of activities and installations requiring a State to inform neighbouring States is included in Appendix I.Although the construction of artificial islands is not explicitly included in the list, several related activities, such as the construction of windfarms and chemical installations (necessary for the production of hydrogen), are listed in Appendix I. 65 66 Directive 2008/56/EC of the European Parliament and of the Council of 17 June 2008 establishing a framework for community action in the field of marine environmental policy, OJ L 164/19 [Marine Strategy Framework Directive or MSFD].67The'North East Atlantic Ocean' includes the Greater North Sea, the Channel, the Kattegat, and the Celtic Seas.See ibid., Article 3(8).This is exactly the same definition as in the OSPAR Convention.
71 T Merck and R Wasserthal, Assessment of the Environmental Impact of Cables (OSPAR Biodiversity Series, 2009) 10-11.72 Cf (n 46).73 MSFD (n 66), Annex III, Table 2. Downloaded from Brill.com 11/12/2023 03:32:56AM via Open Access.This is an open access article distributed under the terms of the CC BY 4.0 license.https://creativecommons.org/licenses/by/4.0/Legal Framework for Artificial Energy Islands The International Journal of Marine and Coastal Law 38 (2023) 1-34 Directorate-General for Environment, Interpretation of Definitions of Project Categories of Annex I and II of the EIA Directive (Publications Office, 2015) 26-27.91Aport can be used for the shipping of construction materials for the island itself, but also, for example, for the transport of parts for offshore wind turbines to be constructed in the vicinity of the island.
94 K Lenaerts, 'Interpretation and the Court of Justice: A basis for comparative reflection' (2007) 41(4) The International Lawyer 1011-1032, at p. 1016.95 EIA Directive (n 86), Annex II, 10k.Downloaded from Brill.com 11/12/2023 03:32:56AM via Open Access.This is an open access article distributed under the terms of the CC BY 4.0 license.https://creativecommons.org/licenses/by/4.0/ 103 When considering energy-specific rules for EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment, OJ L 197, Articles 1, 2(a) [SEA Directive].99 Directive (EU) 2019/944 of the European Parliament and of the Council of 5 June 2019 on common rules for the internal market for electricity and amending Directive 2012/27/EU, OJ L 158/125 [Electricity Directive]; Regulation (EU) 2019/943 of the European Parliament and of the Council of 5 June 2019 on the internal market for electricity, OJ L 158/54 [Electricity Regulation].100 Electricity Directive (n 99), Articles 35, 43-48.101 Ibid., Article 6. 102 Electricity Regulation (n 99), Article 1(c).103 See, for example, the Proposal for a Directive on common rules for the internal markets in renewable and natural gases and in hydrogen, Brussels, 15 December 2021 COM(2021) Downloaded from Brill.com 11/12/2023 03:32:56AM via Open Access.This is an open access article distributed under the terms of the CC BY 4.0 license.https://creativecommons.org/licenses/by/4.0/Legal Framework for Artificial Energy Islands The International Journal of Marine and Coastal Law 38 (2023) 1-34

133
Danish Energy Agency (n 132); Denmark, Energy Agreement (n 132).134 Energinet, 'Energy Islands in Denmark' available at https://en.energinet.dk/infrastructure-projects/energy-islands/; accessed 22 February 2023.135 Political agreement with Germany, the Netherlands and Belgium, December 2020 and February 2021, see Government of Denmark, 'Udbudsforberedende delaftale om langsig-To create transparency regarding the long-term framework for ownership cooperation, the parties in the agreement agree to establish an ownership model structured as a public limited company operating on commercial terms where the Danish State owns at least 50.1 per cent of the company's shares.Ibid.138 The Netherlands, National Climate Agreement (n 10), at p. 166.from Brill.com 11/12/2023 03:32:56AM via Open Access.This is an open access article distributed under the terms of the CC BY 4.0 license.https://creativecommons.org/licenses/by/4.0/